Newsam, J

[1] This is an application to quash the committal of six persons to stand their trial at the Court of Sessions, West Godawari. Four of them have been committed on a charge of extortion by putting a person in fear of death (Section 386, Indian Penal Code) and all six of them on a charge of criminal conspiracy (Section 120-B).

[2] The point taken before me is that under Section 196-A, Criminal Procedure Code, no Court shall take cognisance of the offence of criminal conspiracy where the object of the conspiracy is to commit a non-cognizable offence unless the previous sanction of the Local Government or of the District Magistrate has been obtained. The offence punishable by Section 386, Indian Penal Code, is (rather strangely) non-cognizable. Admittedly, no sanction to prosecute or to initiate these proceedings was obtained. Admittedly also this objection to the Court s jurisdiction was not taken in the lower Court, but has been made for the first time in this petition.

[3] Now it has been held in Abdul Rahaman v. Emperor (1935) I.L.R. 62 Cal. 749 that failure to comply strictly with Section 196-A, Criminal Procedure Code, is not a sufficient ground for quashing proceedings. If proceedings are initiated without formal sanction and end in the conviction of certain persons for criminal conspiracy, the conviction should, it was said, be upheld, unless it can be shown that any one of the persons convicted was prejudiced by the formal defect complained of. If I may say so with respect, this is a sound doctrine. The offence of criminal conspiracy is sui generis. No overt act need be proved. Section 120-A is a comparatively new section in the Indian Penal Code and may be thus analysed. A conspiracy to commit a criminal offence is always a criminal conspiracy punishable as such under Section 120-B even though nothing is done in pursuance thereof. Conspiracy to do an illegal act (which by the definition of illegal in Section 43 includes a tort) or a lawful act by illegal means only amounts to criminal conspiracy and is only punishable under Section 120-B when some act (not an offence by itself) is done by one of the parties to the conspiracy in pursuance thereof. Now there is an obvious danger that charges of criminal conspiracy might be lightly made, savouring of persecution rather than of prosecution. And it was with a view to safeguarding citizens against such persecution on frivolous charges of criminal conspiracy that Section 196-A, Criminal Procedure Code, was enacted at the same time as Section 120-B, Indian Penal Code, insisting upon the previous approval of Government or of some senior and specially empowered Magistrate before such proceedings can be even initiated. If this safeguard is ignored by Magistrates they should be suitably admonished. But when a case has been initiated and has ended in conviction, it is obvious that there never was any innocent person to be protected from persecution. In other words Section 196-A was designed to safeguard persons from frivolous accusations of criminal conspiracy, not as a loophole of escape for persons committed after full magisterial inquiry on a charge of criminal conspiracy or convicted after full trial of criminal conspiracy.

[4] But it has been held in Varadarajulu Naidu v. King-Emperor by a Bench of this Court that a sanction to prosecute for criminal conspiracy, given after the filing of the complaint, does not fulfil the requirements of Section 196-A. This decision follows Barindra Kumar Ghose v. Emperor (1909) I.L.R. 37 Cal. 467 and is an authority for the position that a conviction for criminal conspiracy should be set aside in the absence of proof that prior sanction to initiate the proceedings had been obtained. This decision is binding upon me.

[5] But the facts of the present case allow of its disposal on another ground. In my judgment Sections 120-A and 120-B have been quite wrongly applied to this case and have no bearing at all. Where the matter has gone beyond the stage of mere conspiracy and offences are alleged to have been actually committed in pursuance thereof, these two sections are wholly irrelevant. Conspiracy it should be borne in mind is one form of abetment (see Section 107, Indian Penal Code) and where an offence is alleged to have been committed by more than two persons, such of them as actually took part in the commission should be charged with the substantive offence, while those who are alleged to have abetted it by conspiracy should be charged with the offence of abetment under Section 109, Indian Penal Code. The explanatian to Section 109 makes this quite clear. An offence is said to be committed in consequence of abetment, when it is committed in pursuance of the conspiracy, and the abettor by conspiracy is made punishable (under Section 109) with the punishment provided for the actual offence.

[6] The learned Magistrate has thus erred in applying Section 120-B to this case. He should properly have used Section 109, for Section 120-B only applies where no offence has been actually committed and it is only in the latter rare cases where no crime has been committed in pursuance of a criminal conspiracy that sanction to initiate proceedings is necessary as some safeguard against frivolous prosecution. But the prosecution in this case alleges that an offence has been committed and further that it has been committed in pursuance of a conspiracy. No sanction to initiate prosecution for a substantive offence is ever required. That is an elementary rule of law. All that is necessary here is that the proper section (Section 109, Indian Penal Code) should be applied to the facts and that the misuse of Section 120-B should be pointed out.

[7] I dismiss this petition with a direction that the charge be now suitably amended.